Decisions

CAT File No. Q-2204-41
MoT File No. 5504-41906

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Air Canada, Respondent

LEGISLATION:
Aeronautics Act. R.S., c. 33, (1st Supp.), s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 602.105(c)

Strict Liability, Noise Restrictions, Due Diligence


Review Determination
Pierre Beaudry


Decision: December 27, 2001

Air Canada contravened Montréal's (Dorval) Noise Operating Restrictions published in the Canada Air Pilot pursuant to section 602.105 of the Canadian Aviation Regulations. I confirm the penalty of $12,500 for flight 788. This amount is payable to the Receiver General for Canada and is to be received by the Civil Aviation Tribunal within fifteen days following service of this determination.

A review hearing on the above matters was held Thursday, October 11, 2001 at 10:30 hours at the Federal Court of Canada in Montréal, Québec.

BACKGROUND

On December 15, 1999, Air Canada flight 196 landed in Montréal (Dorval) at 1:27 a.m. during the curfew period specified in the Canada Air Pilot (CAP). A monetary penalty of $12,500 was issued by the Minister of Transport under applicable provisions of the Aeronautics Act. (CAT File No. Q-2205-41)

As well, on February 14, 2000, Air Canada flight 788 landed in Montréal (Dorval) at 2:18 a.m. during the curfew period. An additional and similar penalty was issued by the Minister. (CAT File No. Q-2204-41)

Failing payment, a review hearing was scheduled for October 11, 2001 on the AC 196 case and October 12, 2001 for the second penalty attached to AC flight 788.

PRELIMINARIES

At the outset, on behalf of both parties, the representative of the Minister, Mr. Béland, indicated that the parties had reached an agreement on some of the key facts associated to both cases. This agreement on facts was submitted and entered as Exhibit M-1. Consequently, the motion included a request to combine the two files, as witnesses and applicable law were the same. In the interest of the parties, considering burden, time and cost, this motion was granted so that this Review Determination covers both cases.

EVIDENCE

The aircraft for both flights is an Airbus 319, operating above 45,000 pounds of gross weight and classified for noise purposes, as a "modern" stage 3 aircraft.

The definition of curfew for the Montréal (Dorval) airport is published under the CAP, a copy of which was entered as Exhibit M-2 (applicable to AC 196) and M-3 (applicable to AC 788). Both exhibits show that landing an Airbus 319 is forbidden at Dorval after 1:00 a.m. unless prior permission is obtained from the Airport Duty Manager as per part A, section 5 of the Noise Operating Restrictions.

It is of public notice that the Montréal airport is managed by and operated under the authority of Aéroports de Montréal (ADM). Consequently, two of the witnesses called by the Minister, Mr. Savard and Mr. Gagnon, are managers for ADM.

Exhibit M-1 , complemented by the testimony of Mr. Gagnon of ADM and representations from Counsel for Air Canada, Mr. Poppe, enabled to summarize the operational facts as follows:

Air Canada 196

The flight departed Toronto on December 14, 1999 at 23:24 (local time) with Ottawa as final destination. However, because of weather conditions, the flight diverted to Dorval as the alternate airport and landed December 15 at 1:27 a.m. No prior permission was requested from ADM to authorize a landing beyond operational hours, i.e., to land inside what is known as the curfew period.

Air Canada 788

The flight departed Chicago O'Hare on February 13, 2000 at 23:24, two hours late (due to snow in Toronto), toward Montréal and landed at Dorval, February 14 at 2:18 a.m. A permission to land at such time was requested but not granted by ADM. The pilot-in-command in concert with Air Canada's operational management and its System Operation Centre (SOC) made the decision to land without prior authorization and despite the refusal to grant an exemption.

ADM's Noise Management Policy

Mr. Jacques Savard of ADM was called to testify regarding the overall policy implemented by ADM to manage noise in Montréal. Mr. Savard is "directeur adjoint, gestion du climat sonore" for ADM (Assistant Manager, Noise Management).

Mr. Savard indicated that noise management is among the highest priorities of ADM, such that it requires a full-time involvement from his part.

ADM's corporate objective is the growth of airport traffic but under what is called a "sustainable economic development" approach. Noise is not only an applicable factor of such development but, as indicated above, among the priorities.

ADM has a discretionary power (as further discussed below) to grant or refuse authorization to land after hours. For the purpose of managing this power and complement information contained in the CAP, ADM has developed a guideline built around some eleven criteria such as in-flight delay and air medical evacuation. According to testimony, the bottom line of this guideline is that predictability and operational control are key factors to grant or refuse an authorization to land during prohibited hours. It follows that any request made while it was predictable that such landing would take place beyond hours will be refused. This is the way ADM draws the line, understanding that the matter is a most difficult one, as pointed out by Mr. Savard.

A factor behind the rationale for such "clear-cut" and restrictive policy, and a strict adherence to same, is the presence of Mirabel Airport where there is no curfew, i.e., no restriction on landing.

Cross-examined by Air Canada, Mr. Savard acknowledged that the guideline was established by ADM as opposed to the Government of Canada and that there is a possibility that Montréal (Dorval) is the only airport in Canada with such a policy. He mentioned that weather is indeed a parameter within the guideline but that unpredictability remains paramount for the purpose of granting an authorization.

With respect to AC flight 196 and to the question of knowing if Dorval would have been authorized as the alternate airport considering that the diversion was unforeseeable, Mr. Savard stated that, as per ADM's policy, Mirabel should have been used as the alternate airport. Considering that an exemption request was not made, there is no need to speculate further on what would have been ADM's decision here.

The general comment was made by Mr. Poppe that Air Canada does not operate at Mirabel where they have no staff on duty. The response from Mr. Savard was that the diversion to Mirabel is not only possible but frequent among carriers. Buses take the passengers to the city of Montréal. Mr. Poppe further commented that from an airline economic and customer service standpoint, Dorval made better sense. Mr. Savard replied that environmental factors are at stake and that the line must be drawn somewhere.

Airport Operational Management

Mr. Paul Gagnon was called by the Minister as a witness. Mr. Gagnon is "directeur délégué à l'exploitation" for ADM and was the Airport Duty Manager on February 14 when AC flight 788 landed without authorization. Mr. Gagnon is the one who refused to grant the authorization.

The explanation given by the witness on the refusal follows the logic of the policy: Air Canada could not ensure that the push back of the flight in preparation for its take-off out of Chicago would be at a time early enough to land at Dorval before the curfew. In other words, the landing after hours was not only a strong probability but was actually the outcome, and this outcome was foreseeable before the departure. On that basis, the granting had to be refused as per the policy.

Exhibit M-5 is a copy of ADM's operation log as it pertains to AC 788. As indicated, another AC flight (flight 430) was authorized beyond hours that same night. Mr. Gagnon's explanations were that AC 430 was a "routine" flight approved to land fifteen minutes inside the curfew because its push back was actually made sufficiently in time to meet the regulation on noise, i.e., before midnight in Toronto. Consequently, landing before the curfew was possible from an operational planning standpoint. The story for flight 788 is different because in this case the unpredictability test was not met.

Mr. Gagnon mentioned that ADM operations and Air Canada SOC have ongoing communication to address issues such as curfew exemptions.

THE LAW

Paragraph 602.105(c) of the Canadian Aviation Regulations (CARs) states:

602.105 No person shall operate an aircraft at or in the vicinity of an aerodrome except in accordance with the applicable noise abatement procedures and noise control requirements specified by the Minister in the Canada Air Pilot or Canada Flight Supplement, including the procedures and requirements relating to

(a) preferential runways;

(b) minimum noise routes;

(c) hours when aircraft operations are prohibited or restricted;

(d) arrival procedures;

(e) departure procedures;

(f) duration of flights;

(g) the prohibition or restriction of training flights;

(h) VFR or visual approaches;

(i) simulated approach procedures; and

(j) the minimum altitude for the operation of aircraft in the vicinity of the aerodrome.

The CAP shows under part B, prohibition hours published for the airport and part A (section 5) appoints the Airport Duty Manager as the authority to grant or refuse an ad hoc authorization to land beyond operating hours.

Consequently, the CARs give a discretionary power to local airport authorities with respect to noise management. Under the CARs that replaced the former Air Navigation Order (ANO), Series II, noise management has become a matter dealt with at the local level.

A very basic principle of administrative law is that such discretionary power must be administered with fairness. This fundamental principle calls for a fair and unbiased administration of such discretion. In turn, to achieve fairness, a clear policy governing any discretionary matter is the best way to avoid confusion and unfairness.

ARGUMENTS

For the Minister, Mr. Béland represented that the two contraventions were proven considering that strict liability is the applicable rule here. While due diligence can provide a proper defence against strict liability, a rule reaffirmed at section 8.5 of the Aeronautics Act, the Minister argued that no authorization was requested for AC 196 while an authorization was requested for AC 788 but refused. Consequently, no measures were taken to avoid either contravention. It follows that not only was due diligence not exercised but that in the case of AC 788, a deliberate breach of the CARs took place.

For Air Canada, Mr. Poppe pleaded that noise management should be approached by looking at the "whole picture" and that airports should be reasonable. Policies should balance "things" among all the players. With respect to ADM and Montréal as a destination, criteria behind the policy are not listed nor filed, and its noise policy is not only overly restrictive but unrealistic considering the Canadian weather environment. Counsel raised the American Airlines[1] case of 1991 where weather conditions prevailing across the network was the cause behind the system delay that took place.

Regarding AC flight 196, Air Canada represented that a missed approach from Ottawa to Dorval entails a very short flight, and that safety is a consideration. Having Ottawa as a destination, the flight is not a case where authorization would be required. Counsel later submitted that a request was perhaps a need but that, in any event, authorization would have been denied in favour of Mirabel. He claimed that other carriers are not being asked to go to Mirabel and that ADM's management has an unbalanced approach to noise management playing against Air Canada. Furthermore, that if people in Montréal would understand the cost and inconvenience to passengers and to Air Canada of landing late at night in Mirabel, they would understand and not complain. He further represented that the level of complaints associated with flights of the case remains unknown.

Mr. Poppe raised the Sault Ste. Marie[2] case where, according to him, the Supreme Court considered cost as a factor to assess the nature and level of reasonable measures needed to achieve due diligence.

On facts pertaining to flights, Air Canada represented that flight 196 was only twenty-eight minutes late while in the case of flight 788, ADM simply refused to exercise its discretion.

For the Minister, safety is not an issue at stake here, but rather only the economic impact of noise restrictions to an airline such as the offender. While the business cost and inconvenience to passengers to landing at Mirabel is obvious and significant, it does not constitute a defence nor a factor to mitigate the penalty, and furthermore that Air Canada had always the option to return to the point of origin if unhappy with Mirabel.

ANALYSIS

The CARs replaced the ANOs and made noise management a local matter giving to local authorities discretion to establish noise management policy and manage exemptions from curfew as part of such policy.

This is exactly what ADM is doing here, and I have no evidence that ADM is treating Air Canada without fairness. To avoid confusion or inconsistencies, a clear-cut policy was implemented to use Mirabel Airport if landing after the curfew is or could be predictable. This policy is known or deemed to be known to Air Canada as its SOC interacts with ADM daily, not to mention that Air Canada is a system customer of ADM.

With respect to the foregoing remarks on airline economics, I will comment as follows. There is no doubt that landing an aircraft away from its base after hours is a real inconvenience to passengers and to the carrier. Under short notice, proper arrangements need to be made to deal with the passengers while the aircraft becomes no longer positioned for the next flight on schedule. This is the kind of economic impact Mr. Poppe is talking about.

However, this whole economic issue (with or without the Mirabel issue) deals with the "opportunity" aspect of noise restrictions, themselves a reflection of an institutional policy. The Tribunal has no jurisdiction here to review policies at the opportunity level. The regulations give ADM discretion to set the policy and, unless the setting up or execution of such policy is unfair from an administrative law standpoint, the recourse of Air Canada to seek a less restrictive policy is with ADM not with the Tribunal. Meanwhile, and until then, the noise restrictions and conditions as published in the CAP must be followed at any given time.

Albeit very restrictive, the fact that ADM has a somewhat "clear-cut" policy on predictability adds to the quality of this policy because consistency is better served when parameters are well defined. At least, Air Canada knows where ADM stands and the comment made by Mr. Poppe that "why ask an exemption when we know the answer will be Mirabel" shows the point. The entire scope of the matter is a function of the prime consideration given to noise management at ADM.

As for the American Airlines case of 1991, I would like to point out that ANO Series II in force at that time is no longer the applicable law.

DETERMINATION

The facts of the case under the two counts described at Exhibits M-1, M-4 and M-5 are not challenged by the parties and actually admitted in the case of facts outlined in Exhibit M-1.

By landing beyond operating hours at Dorval on December 15, 1999, Air Canada contravened Montréal's (Dorval) Noise Operating Restrictions published in the CAP pursuant to section 602.105 of the CARs. An exemption request was not submitted (made possible under section A(5) of ADM's published policy) and consequently never obtained. Consequently, due diligence to prevent the offence was not exercised.

By landing beyond operating hours at Dorval on February 14, 2000, Air Canada contravened Montréal's (Dorval) Noise Operating Restrictions published in the CAP pursuant to section 602.105 of the CARs. An exemption request was submitted (made possible under section A(5) of ADM's published policy) but refused, and landing was made without an exemption. In this case, we have a deliberate breach of the CARs collectively by the crew, SOC and the duty pilot, as shown at M-1.

SANCTION

For the Minister, Mr. Justin Bourgault testified as Transport Canada Regional Manager for Enforcement, as he was then.

The Transport Canada Aviation Enforcement Procedures Manual[3] was entered as Exhibit M-7. For an offence under section 602.105 of the CARs, the guideline shows a fine of $5,000 for a first offence, $12,500 for a second offence, and up to $25,000 for a third offence.

The monetary penalty for each contravention was established at $12,500, each being considered and treated as a second offence. Evidence regarding the first offence was entered as Exhibit M-8 indicating that on April 12, 1999, Air Canada and the Minister agreed to a settlement of $4,000 regarding a first offence that took place on September 27, 1998.

Mr. Bourgault further testified that the penalty of $12,500 was fully justified considering that:

  1. the ceiling of $25,000 is a clear indication of the importance given to noise management by the CARs;
  2. Mirabel is always a possible alternate, making these counts serious offences;
  3. an exemption request was not submitted in one case while being submitted but refused in the second case.

At the argument stage, on behalf of the Minister, Mr. Béland evoked the Wyer[4] case where, at the appeal level, the Tribunal made a full review of factors to be considered when setting a monetary penalty.

For the Minister, the prime factors under consideration here ought to be deterrence and exemplariness. Unless the penalty is set above the "cost of doing business," operators might not abide by the rules and regulations on noise restrictions. Thus, the level of penalty is not only appropriate but needs to be above the cost of doing business to be effective.

For Air Canada, Mr. Poppe argued that many mitigating factors play in favour of Air Canada:

  1. The introduction of stage 3 aircraft in the fleet;
  2. cooperation of Air Canada on the investigation;
  3. the practice at Air Canada of constantly reminding pilots-in-command to observe curfews;
  4. the economic impact to our aviation community of landing in Mirabel where there is no staff on duty;
  5. the level of complaints may not justify the level of the penalty.

He concluded, arguing that Transport Canada is inconsistent on sanctions related to noise, that the level of the fines here was grossly wrong, and that the application of the Minister should be dismissed.

As for the statement that Transport Canada is not consistent on sanctions related to noise, I see no evidence of this when perusing a printout of Transport Canada Enforcement web pages (discussed at the hearing but not entered on record as this is public information). Mr. Poppe calculated past penalties on an average basis to support his views on inconsistencies. This cannot work because a second or third offence will not be considered as such until conviction on the first or previous offence is pronounced, and this explains why two offences without a first conviction would entail a penalty of $10,000, not $17,500. It is for this same reason that Air Canada has twice a penalty of $12,500 under the two counts as opposed to $25,000 for the alleged third offence.

In the case of flight 196, Air Canada argues as a mitigating factor that this was a very short flight (overshooting Ottawa for Dorval as the alternate), explaining that while a request should have been filed, the crew may not have had the time to do so. This is true, but it is also true that Air Canada has a SOC in constant interaction with airport authorities such as ADM.

I do not agree with Air Canada that the level of complaints is a mitigating factor for the setting of a penalty. Our system of law is not based on phone calls received as a way to set the penalty. This is not to say that it cannot have an impact on the aggravating side of the scale as indicated in the Wyer case. However, as a measurement tool, the level of complaints is certainly key to ADM's policy review process.

All factors considered, I see no reason to modify the level of penalty of $12,500 issued for AC 196 as a second offence.

However, in the case of flight 788, I am quite concerned about Air Canada's behaviour. In this case, we not only have a deliberate breach but a planned decision made by the crew and endorsed by the SOC and the duty pilot to land despite a refusal to exempt. On one hand, it is a serious aggravating factor. On the other hand, taking the view and establishing a possible enforcement trend that "no request" is less of a serious offence than a deliberate breach would not serve our system of law.

The Minister, through his enforcement process, elected to issue the same level of penalty, the offence being considered a second offence as well. I will accept this. The combination of the two penalties should produce a deterrent effect sufficient to see the Respondent, Air Canada, operating as per section 602.105 of the CARs in the future.

Policy matters concerning ADM's noise restrictions and the use of Mirabel belong to the air transport business, and I hope that the respective management of Air Canada and ADM will keep exchanging business views on the impact of ADM's approach to airport traffic growth.

DETERMINATION ON SANCTION

I confirm the penalty of $12,500 for count 1 (AC 196) and for count 2 (AC 788) for a total of $25,000.

Pierre Beaudry
Member
Civil Aviation Tribunal


[1] Minister of Transport and American Airlines, CAT File No. Q-0228-41, [1991] C.A.T.D. No. 23.

[2] [1978] 2 S.C.R. 1299.

[3] TP 4751E, Second Edition, 1999.

[4] Minister of Transport and Kurt William M. Wyer, CAT File No. O-0075-33 (Appeal), [1988] C.A.T.D. No. 123.